US v Nixon

Key notes:
Deep Throat – a pseudonym given to the secret informant who provided info in 1972 to Bob
Woodward who shared it with Carl Bernstein. Deep Throat provided key details about the
involvement of US President Richard Nixon’s Administration in the Watergate Scandal.
Facts:

 Early-morning of June 17, 1972 – five “burglars” were caught breaking into the
headquarters of the Democratic National Committee at the Watergate complex. They
were operating on the orders of E. Howard Hunt, a onetime CIA agent who had recently
worked in the White House, and G. Gordon Liddy, an ex-FBI agent who was on the
payroll of the Committee to Re-elect the President (CRP which was organizing Nixon’s
run against Senator George McGovern of South Dakota).
 Funds from the break-in, laundered through a Mexican bank account, had actually come
from the coffers of CRP, headed by John Mitchell, the attorney general during Nixon’s
first term.
 Suspicions were raised throughout Washington: What were five men with Republican
connections doing with gloves, cameras, large amounts of cash, and bugging equipment
in the Democrat’s top campaign office?
 The case remained in the headlines thanks to the reporting of two journalists: Carl
Bernstein and Bob Woodward. The heat was also kept on because of a continuing FBI
investigation, headed by the acting associate director, Mark Felt
 The Watergate probe appeared to be at an impasse, the break-in having been explained
away as a private extortion scheme that didn’t extend beyond the suspects in custody.
McGovern couldn’t gain campaign traction with the issue, and the president was re-
elected in November 1972 by an overwhelming majority.
 In an effort to keep the Watergate affair in the news, Deep Throat (aka Mark Felt) had
been consistently confirming/denying confidential information for the reporter, Bob
Woodward.
 May 1973 – Nixon’s Attorney General, Elliot Richardson, appointed Archibald Cox to the
position of special prosecutor, charged with investigating the break-in.
 October 1973 – Nixon arranged to have Cox fired in the Saturday Night Massacre.
 Soon public outcry grew, forcing Nixon to appoint a new special prosecutor, Leon
Jaworski, who was charged with conducting the Watergate investigation for the
government.
 April 1974 – Jaworski obtained a subpoena ordering Nixon to release certain tapes and
papers related to specific meetings between the President and those indicted by the
grand jury. Those tapes and conversations revealed were believed to contain damaging
evidence involving the indicted men and perhaps the President himself.
 Hoping that Jaworski and the public would be satisfied, Nixon turned over edited
transcripts of 43 conversations, including portions of 20 conversations demanded by the
subpoena.
 James D. St. Clair (Nixon’s attorney) requested to squash the subpoena, arguing that
“The President is as powerful a monarch as Louis XIV, only four years at a time, and is
not subject to the processes of any court in the land except the court of impeachment.
  Judge denied Nixon’s motion and ordered the President to turn the tapes over. Both
Nixon and Jaworski appealed directly to the Supreme Court. Nixon’s attorney argued
that the matter should not be subject to “judicial resolution” since the matter was a
dispute within the executive branch and the branch should resolve the dispute itself.
Nixon’s attorney, citing Art. II of the US Constitution, also claimed that Nixon had an
absolute executive privilege to protect communications between “high Government
officials and those who advise and assist them in carrying their duties”.

ISSUE:
WON President Nixon’s executive privilege absolute? - NO
RULING:
In a unanimous decision, the Court ruled in favor of the United States and against
President Nixon.

 On Aug 8, 1974 – with the House of Rep. clearly moving toward impeachment, the
president announced his resignation, and more than 30 government/campaign officials
in and around the Nixon White House would ultimately plead guilty to or be convicted of
crimes.
 In brief, Watergate had reaffirmed that no person, not even the president of the US, is
above the law.
 Watergate helped set in motion what would become known as the “independent
counsel” law (for investigating top federal officials) and helped make whistle-
blowing (on wrongdoings in business and government) a legally sanctioned, if
still risky and courageous, act. Watergate invigorated an independent press,
virtually spawning a generation of investigative journalists.

Ratio:

Chief Justice Burger, wrote the opinion for the Court, which concluded that presidents do
enjoy a constitutionally protected executive privilege, but that the privilege was not
absolute. The Court decided that in this case, the President’s interest in keeping his
communications secret was outweighed by the interests of the judiciary in providing a fair trial
with full factual disclosure.

President Nixon’s attorneys first argued that the doctrine of separation of powers prevented the
Supreme Court from hearing this case at all. They asserted that because the judicial and
executive branches are separate, each with its own functions, the judicial branch should not be
allowed to interfere with the functioning of the executive branch. The Court rejected this
argument, responding that the case raised a constitutional question, and therefore clearly fell
within the functions of the judicial branch as interpreter of the Constitution. To support this
ruling, the justices cited the Court’s decision in Marbury v. Madison, in which the Court declared
that “it is emphatically the province and duty of the judicial department to say what the
law is.”

President Nixon’s lawyers also asserted that the Court should find the president was entitled to
absolute executive privilege. This meant that he could not be forced to reveal any of his
confidential communications unless he chose to. The lawyers set out two reasons to support
their argument. First, the president needed honest advice from his advisors, and these advisors
might be uncomfortable giving advice if they knew that it could become public. Second, these
confidential communications were essential for the president to carry out the duties assigned to
the executive branch by the Constitution.

The Court acknowledged the validity of these interests and that the president was entitled to a
degree of executive privilege. This privilege was not determined to be absolute. In this case,
the interest of President Nixon in keeping his communications secret conflicted with the
interests of the judicial branch in providing a full and fair trial. A fair trial required full
disclosure of all facts and relevant information. The justices asserted that the interests of the
president must be balanced against the interests of the judicial branch when these interests
conflict.

The justices reasoned that the judiciary’s interest in the “fair administration of criminal justice”
outweighed President Nixon’s interest in keeping the content of his tapes secret. One reason for
this was that the only issue before the Court was whether the trial judge could privately inspect
the tapes to determine whether they were essential to a fair trial. The justices further stated that
there would be cases in which the president’s need for confidentiality would outweigh the
interests of the judicial branch, such as when the secret communication involved “military,
diplomatic or sensitive national security secrets.”